EXHIBIT 10.27
COLUMBUS REALTY TRUST
LONG-TERM MANAGEMENT INCENTIVE PLAN
PERFORMANCE-BASED STOCK AND DIVIDEND EQUIVALENT
AWARD AGREEMENT
I
PURPOSE
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The purpose of this Award Agreement (the "Award Agreement") is to reward
the Participating Grantee (as defined below) for his or her service to Columbus
Realty Trust and its subsidiaries (collectively, the "Company"), to promote the
interests of Participating Grantee in the Company and to stimulate his or her
endeavors on behalf of the Company and strengthen the desire of such individual
to remain with the Company, thus advancing the interests of the Company and its
shareholders by providing an incentive to those responsible for the success and
growth of the Company.
II
EFFECTIVE DATE
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This Award Agreement is dated as of November 15, 1996 (the "Effective
Date").
III
DEFINITIONS
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For purposes of this Award Agreement, the following terms will have the
definitions set forth below:
(a) Board: The Board of Trust Managers of the Company or any
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successor board of directors or other persons serving in such capacity on behalf
of the Company.
(b) Cause: (A) the willful and continued failure by the Participating
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Grantee to substantially perform the duties of his or her position with the
Company (other than any such failure resulting from the Participating Grantee's
incapacity due to physical or mental illness or any such actual or anticipated
failure resulting from termination by the Participating Grantee for Good Reason
as defined below) for a period of 30 days after written demand for substantial
performance is delivered to Participating Grantee by the Company, specifically
identifying the manner in which the Company believes the Participating Grantee
has not substantially performed his duties, (B) willful engaging by the
Participating Grantee in conduct which is demonstrably and materially injurious
to the Company, monetarily or otherwise or (C) the willful violation by
Participating Grantee of the provisions of Paragraph 13 of the Employment
Agreement. For purposes of this definition, no act, or failure to act, on the
Participating Grantee's part shall be considered "willful" unless done, or
omitted to be done, by him not in good faith and without
reasonable belief that his action or omission was in the best interest of the
Company and its shareholders. Notwithstanding the foregoing, the Participating
Grantee shall not be deemed to have been terminated for proper "Cause" unless
and until there shall have been delivered to the Participating Grantee a copy of
a resolution duly adopted by the affirmative vote of not less than three-
quarters (3/4) of all of the members of the Board at a meeting of the Board
called and held for such purpose (after reasonable notice to the Participating
Grantee and an opportunity for the Participating Grantee, together with counsel
of his choosing, to be heard before the Board not less than 10 business days
after the giving of such notice), finding that in the good faith opinion of the
Board, the Participating Grantee conducted himself as set forth above in clause
(A), (B) or (C) and specifying the particulars of such conduct in detail.
(c) Change in Control: The occurrence at any time during the term of
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this Award Agreement of any of the following events:
(i) The Company is merged, consolidated or reorganized into or with
another corporation or other legal entity, and, as a result of
such merger, consolidation or reorganization, less than a
majority of the combined voting power of the then outstanding
securities of the Company or such corporation or other legal
entity immediately after such transaction are held in the
aggregate by the holders of voting stock of the Company
immediately prior to such transaction;
(ii) The Company sells all or substantially all of its assets to any
other corporation or other legal entity, of which less than a
majority of the combined voting power of the then outstanding
securities (entitled to vote generally in the election of
directors or persons performing similar functions on behalf of
such other corporation or legal entity) of such other
corporation or legal entity are held in the aggregate by the
holders of voting stock of the Company immediately prior to such
sale;
(iii) A Schedule 13D or Schedule 14D-1 (or any successor schedule,
form or report), each as promulgated pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act") is filed,
disclosing that any person (as the term "person" is used in
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has
become the beneficial owner (as the term "beneficial owner" is
defined under Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act) of securities representing
25% or more of the combined voting power of the then-outstanding
securities entitled to vote generally in the election of
directors of the Company ("Voting Stock"); or
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(iv) During any one (1) year period, individuals who at the beginning
of any such period constitute the Board cease for any reason to
constitute at least a majority thereof, unless the election, or
the nomination for election by the Company's shareholders, of
each member of the Board first elected during such period was
approved by a vote of at least two-thirds of the members of the
Board then still in office who were members of the Board at the
beginning of any such period.
Notwithstanding the foregoing provisions, a "Change in Control" shall not be
deemed to have occurred for purposes of this Award Agreement solely because (i)
the Company, (ii) a corporation or other legal entity in which the Company
directly or indirectly beneficially owns 50% or more of the voting securities of
such entity, or (iii) any Company-sponsored employee stock ownership plan or any
other employee benefit plan of the Company, either files or becomes obligated to
file a report or a proxy statement under or in response to Schedule 13D,
Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or
report or item therein) under the Exchange Act, disclosing beneficial ownership
by it of shares of voting stock, whether in excess of 25% or otherwise, or
because the Company reports that a change in control of the Company has or may
have occurred or will or may occur in the future by reason of such beneficial
ownership.
(d) Columbus Cost of Funds: For any period, the Company's average
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rate of interest paid on all funded indebtedness.
(e) Columbus Cumulative Total Return: For a specified period, the
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total return on the Common Shares computed solely as to the Common Shares in
accordance with the procedures of the National Association of Real Estate
Investment Trusts ("NAREIT") specified on Exhibit "A" attached hereto,
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calculated to ten decimal points.
(f) Columbus Total Annual Return: For each calendar year, the total
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return for the Common Shares computed solely as to the Common Shares in
accordance with the procedures of NAREIT specified on Exhibit "A" attached
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hereto, calculated to ten decimal points.
(g) Commission: The Securities and Exchange Commission.
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(h) Committee: The committee which has responsibility for
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administering the Plan.
(i) Common Shares: The common shares of beneficial interest, par
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value $.01 per share, of the Company or such other securities into which such
Common Shares may be converted, exchanged or otherwise reclassified.
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(j) Company: Columbus Realty Trust, a Texas real estate investment
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trust.
(k) Disability: The determination by the Company, upon the advice of
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an independent qualified physician, that the Participating Grantee has become
physically or mentally incapable of performing the duties of his or her position
with the Company and such disability has disabled the Participating Grantee for
a period of six successive months.
(l) Dividend Equivalent: For each calendar year, or applicable
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portion thereof, the product of (i) the aggregate amount of dividends (whether
cash or noncash) declared per outstanding Common Share during the applicable
calendar year, or portion thereof, and (ii) the number of Shares potentially
issuable to Participating Grantee hereunder, as such number may be adjusted from
time to time in accordance with Article IX of this Award Agreement.
(m) Dividend Equivalent Payment Criteria: With respect to each
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calendar year, the Columbus Total Annual Return, determined on each Measurement
Date for the calendar year ending immediately prior to such Measurement Date,
shall exceed (by at least .00000001%) the NAREIT Equity Apartment Total Return
Index for such calendar year.
(n) Dividend Reinvestment Plan: The Company's Dividend Reinvestment
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and Share Purchase Plan, as the same shall be amended from time to time.
(o) Employment Agreement: The Employment Agreement dated as of the
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date hereof between the Company and the Participating Grantee, as in effect on
the date hereof. References herein to the Employment Agreement shall remain in
full force and effect, whether or not such Employment Agreement shall remain in
effect or be modified or amended in any manner.
(p) Good Reason: (i) the assignment to the Participating Grantee of
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any duties materially different from those contemplated by Paragraph 2 of
Participating Grantee's Employment Agreement, or any limitation of the powers of
the Participating Grantee in any respect not contemplated by Paragraph 2
thereof; (ii) any removal or failure by management to nominate, or, if
nominated, by the shareholders to reelect, the Participating Grantee to the
Board of Trust Managers, except in connection with termination of the
Participating Grantee's employment for Cause or by reason of death or
Disability; (iii) any removal or failure by the Board to reappoint the
Participating Grantee as a member of the Executive Committee or any comparable
committee of the Board, except in connection with termination of the employment
for Cause or by reason of death or Disability; (iv) a material reduction in the
Participating Grantee's annual base salary or other benefits (except for bonuses
or similar discretionary payments) as in effect at the time in question, or any
other failure by the Company to comply with Paragraph 3 of Participating
Grantee's Employment Agreement; or (v) any purported termination of the
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Participating Grantee's employment which is not effected pursuant to a Notice of
Termination or a Notice of Expiration (as defined in the Employment Agreement)
satisfying the requirements of the Employment Agreement.
(q) Measurement Date(s): The 15th day of January of each of 1998,
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1999, 2000, 2001 and 2002, provided that if such date is not a business day, the
Measurement Date shall be the next succeeding business day.
(r) NAREIT Equity Apartment Total Return Series: The statistical
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calculation determined by NAREIT of the weighted average total return per common
share for all publicly-traded equity residential apartment real estate
investment trusts, calculated to ten decimal points, determined as of December
31 of a specified year for the preceding one-year, three-year or five-year
periods, as applicable, in accordance with the procedures described on Exhibit
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"A" hereto, provided that if NAREIT (or any other comparable REIT industry
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organization) no longer prepares such index, the Company shall cause such
calculation to be performed by its independent public accountants in accordance
with procedures described on Exhibit "A" hereto.
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(s) Participating Grantee: The individual who has signed this Award
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Agreement and is entitled, subject to the terms and conditions hereof, to
receive the Shares pursuant to the grant under this Award Agreement.
(t) Plan: The Columbus Realty Trust Long-Term Management Incentive
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Plan, as the same may be amended from time to time.
(u) Registration Statement: The Registration Statement on Form S-8
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(Registration No. 333-02276), filed with and declared effective by the
Commission, as such Registration Statement may be amended and supplemented from
time to time.
(v) Shares: The Common Shares which may be granted to the
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Participating Grantee pursuant to this Award Agreement.
(w) Vesting Criteria: (a) With respect to the January 15, 2000
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Measurement Date, the Columbus Total Cumulative Return for the three calendar
years ending on the December 31 immediately preceding such Measurement Date
shall exceed (by at least .00000001%) the NAREIT Equity Apartment Total Return
Series for such period plus 2.0% or (b) with respect to the January 15, 2002
Measurement Date, the Columbus Total Cumulative Return for the five calendar
years ending on the December 31 immediately preceding such Measurement Date
shall exceed (by at least .00000001%) the NAREIT Equity Apartment Total Return
Series for such period.
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IV
ADMINISTRATION
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This Award Agreement shall be administered by the Committee whose
determinations and interpretations made in good faith on matters relating to the
Award Agreement shall be conclusive and final.
V
TERMS OF GRANT OF SHARES
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On January 15, 2000, if the Vesting Criteria has been satisfied, the
Company shall issue to the Participating Grantee [AMOUNT] Shares, subject to
adjustment as provided in Article IX of this Award Agreement. If the Vesting
Criteria has not been satisfied on January 15, 2000, then on January 15, 2002,
if the Vesting Criteria has been satisfied, the Company shall issue to the
Participating Grantee [AMOUNT] Shares, subject to adjustment as provided in
Article IX of this Award Agreement.
In addition to the foregoing, in the event that, prior to the date on
which the Shares become vested and are to be issued in accordance with the
foregoing provisions of this Article V, either (i) the Participating Grantee's
employment with the Company is terminated by the Company without Cause, or (ii)
a Change of Control occurs, all Shares shall immediately vest and be issued on
the date of such occurrence.
In addition to the foregoing, in the event that, prior to the date on which
the Shares become vested and are to be issued in accordance with the foregoing
provisions of this Article V, either (i) the Participating Grantee's employment
with the Company is terminated as a result of his death or Disability or (ii)
the Participating Grantee terminates his employment with the Company with Good
Reason, the number of Shares equal to the product of (i) the percentage of the
Dividend Equivalent required to be paid to Participating Grantee with respect to
the Company's most recently completed calendar year preceding the date of
termination, determined in accordance with Section VI hereof, and (ii) the total
number of Shares issuable pursuant to this Award Agreement (as the same may have
been adjusted), shall immediately vest and be issued on the date of such
termination.
Upon satisfaction of the Vesting Criteria on either January 15, 2000
or January 15, 2002, or the occurrence of any of the events described above in
this Article V entitling Participating Grantee to receive all or any portion of
the Shares, the Company shall issue a certificate in the name of the
Participating Grantee for the applicable number of Shares to be issued pursuant
to this Award Agreement. Such Shares shall be issued pursuant to the
Registration Statement, free of restriction (except for any restriction
resulting solely as a result of Participating Grantee's status as an executive
officer or Trust Manager of the Company) and shall, on the date of issuance, be
listed on the New York Stock
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Exchange, or such other national securities exchange on which the Company's
Common Shares are then listed.
Commencing on the date the Vesting Criteria is satisfied or on the
date of the occurrence of any of the events described above in this Article V
entitling Participating Grantee to receive all or a specified portion of the
Shares, the Participating Grantee shall have all of the rights of a shareholder
of the Company with respect to such Shares, including the right to vote such
Shares and receive the dividends and other distributions paid or made with
respect to such Shares.
VI
DIVIDEND EQUIVALENT PAYMENTS
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On each Measurement Date the Company shall pay to the Participating
Grantee, in cash or by certified check, an amount equal to a specified
percentage of the Dividend Equivalent, such percentage (hereinafter, the
"Applicable Percentage") to be as follows:
(a) If the Dividend Equivalent Payment Criteria has been achieved for
calendar year 1997, 30% of the Dividend Equivalent for such calendar
year shall be paid to Participating Grantee on the January 15, 1998
Measurement Date and, in the event the Dividend Equivalent Payment
Criteria is not achieved for a subsequent calendar year, 30% of the
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Dividend Equivalent for such calendar year shall continue to be paid
to Participating Grantee on each subsequent Measurement Date until (i)
the Dividend Equivalent Payment Criteria is again satisfied or (ii)
the Shares become issuable or Participating Grantee's rights with
respect thereto are terminated in accordance with the terms hereof.
(b) If the Dividend Equivalent Payment Criteria has been achieved for
calendar year 1998, 45% of the Dividend Equivalent for such calendar
year shall be paid to Participating Grantee on the January 15, 1999
Measurement Date and, in the event the Dividend Equivalent Payment
Criteria is not achieved for a subsequent calendar year, 45% of the
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Dividend Equivalent for such calendar year shall continue to be paid
to Participating Grantee on each subsequent Measurement Date until (i)
the Dividend Equivalent Payment Criteria is again satisfied or (ii)
the Shares become issuable or Participating Grantee's rights with
respect thereto are terminated in accordance with the terms hereof.
(c) If the Dividend Equivalent Payment Criteria has been achieved for
calendar year 1999, 60% of the Dividend Equivalent for such calendar
year shall be paid to Participating Grantee on the January 15, 2000
Measurement Date and, in the event the Dividend Equivalent Payment
Criteria is not achieved in a subsequent calendar year, 60% of the
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Dividend Equivalent for such calendar year shall continue to be paid
to Participating Grantee on each
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subsequent Measurement Date until (i) the Dividend Equivalent Payment
Criteria is again satisfied or (ii) the Shares become issuable or
Participating Grantee's rights with respect thereto are terminated in
accordance with the terms hereof.
(d) If the Dividend Equivalent Payment Criteria has been achieved for
calendar year 2000, 75% of the Dividend Equivalent for such calendar
year shall be paid to the Participating Grantee on the January 15,
2001 Measurement Date and, in the event the Dividend Equivalent
Payment Criteria is not achieved in a subsequent calendar year, 75% of
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the Dividend Equivalent shall continue to be paid to Participating
Grantee on each subsequent Measurement Date until (i) the Dividend
Equivalent Payment Criteria is again satisfied or (ii) the Shares
become issuable or Participating Grantee's rights with respect thereto
are terminated in accordance with the terms hereof.
(e) If the Dividend Equivalent Payment Criteria has been achieved for
calendar year 2001, 100% of the total applicable Dividend Equivalent
for such calendar year shall be paid to Participating Grantee on the
January 15, 2002 Measurement Date.
In addition to the foregoing payments of the Dividend Equivalent, on each
Measurement Date the Company shall pay to Participating Grantee, in cash or by
certified check, an additional amount (the "Interest Component") equal to the
amount of interest which would have been earned if the Shares (or the Applicable
Percentage thereof) had been issued on the date hereof and all dividends which
would have been paid thereon had been invested on each of the Company's dividend
payment dates at a rate equal to Columbus' Cost of Funds. Such Interest
Component shall be calculated for each calendar quarter during the calendar year
immediately preceding the applicable Measurement Date by multiplying (i) the
Applicable Percentage by (ii) the Dividend Equivalent for such calendar quarter
and all previous calendar quarters during the applicable calendar year and by
(iii) Columbus' Cost of Funds for such quarter.
If all the Shares awarded hereunder are to be issued to Participating
Grantee pursuant to the first or second paragraph of Article V hereof, then
Participating Grantee shall be entitled to receive and the Company shall pay to
Participating Grantee, in cash or by certified check, on the date such Shares
are to be issued, an amount equal to the Dividend Equivalent for all calendar
years which was not previously payable to Participating Grantee in accordance
with the requirements of this Article VI, plus an additional amount (the
"Reinvestment Component") equal to the value (based upon the closing price of
the Common Shares on the NYSE on the date the Shares become vested and are to be
issued pursuant to the first or second paragraph of Article V hereof) of the
number of Common Shares which could have been purchased with dividends payable
on the Shares if the Shares had been issued on the date hereof and such
dividends (excluding the amount of any Dividend Equivalent previously paid to
Participating Grantee
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but including the dividends which would have been payable on all Common Shares
which could have been purchased with the dividends payable on the Shares) had
been invested and reinvested continuously on each dividend payment date in
Common Shares pursuant to the Dividend Reinvestment Plan.
If less than all Shares awarded hereunder are to be issued to Participating
Grantee pursuant to the third paragraph of Article V, then Participating Grantee
shall be entitled to receive and the Company shall pay to Participating Grantee,
in cash or by certified check, on the date such Shares are to be issued, an
amount equal to the excess of (a) the product of (i) the Applicable Percentage
with respect to the Company's most recently completed calendar year preceding
the date of termination and (ii) the aggregate Dividend Equivalent for all
calendar years (or portions thereof) preceding the date of termination, over (b)
the aggregate amount of the Dividend Equivalent paid by the Company to
Participating Grantee for all calendar years prior to the date on which such
Shares become issuable, plus an amount equal to the Reinvestment Component
determined in accordance with the immediately preceding paragraph assuming the
investment and reinvestment continuously in the Dividend Reinvestment Plan of
such excess amount payable to Participating Grantee.
VII
REGISTRATION OF SHARES
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The Company covenants and agrees with Participating Grantee that, at all
times during which all or any portion of Shares may be issuable to Participating
Grantee hereunder, to (i) cause a sufficient number of Shares to be reserved for
issuance pursuant to the Plan and (ii) cause the Registration Statement to
remain effective with the Commission.
The Company further covenants and agrees with Participating Grantee that it
shall, within thirty (30) days of receipt of the written request of
Participating Grantee delivered to the Secretary of the Company, cause to be
filed with the Commission a registration statement (on Form S-3 or other
appropriate form prescribed by the Commission) in the event such registration
statement is necessary to enable Participating Grantee to freely resell to the
public the Shares issued or issuable hereunder. The Company shall use its best
efforts to cause the Commission to declare such registration statement effective
and shall maintain such effectiveness until the earlier to occur of (i) the
resale by Participating Grantee of all Shares issuable hereunder; (ii) the
forfeiture or termination of all rights of Participating Grantee to receive the
Shares in accordance with the terms of this Award Agreement; or (iii) the
expiration of five (5) years from the date of the effectiveness of such
registration statement.
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VIII
TERMINATION OF RIGHTS
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In the event that the Participating Grantee's employment with the
Company is terminated for Cause or the Participating Grantee voluntarily leaves
the employ of the Company (other than with Good Reason) prior to the date on
which the Shares become vested and are to be issued in accordance with Article V
hereof, all rights of Participating Grantee hereunder with respect to the
issuance of Shares, the payment of any portion of the Dividend Equivalent for
any year, or otherwise shall terminate and be of no further effect.
In the event that the Vesting Criteria has not been satisfied on or
before January 15, 2002, all rights of Participating Grantee hereunder with
respect to the issuance of the Shares shall terminate and be of no further force
and effect.
In the event that, as a result of (i) termination of Participating
Grantee's employment with the Company as a result of death or Disability or (ii)
termination by Participating Grantee of his employment with the Company for Good
Reason, a specified percentage (but less than 100%) of the Shares vest and are
to be issued pursuant to Article V hereof, Participating Grantee shall have no
further rights with respect to the issuance of the balance of the Shares or the
payment of any portion of the Dividend Equivalent except as specifically
provided in Article VI.
IX
ADJUSTMENT OF SHARES
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In the event that, prior to the delivery of all the Shares, there
shall be any change in the outstanding Common Shares of the Company, through
reorganization, recapitalization, reclassification, share dividend, share split,
amendment to the Company's Declaration of Trust, reverse share split, or
otherwise, an appropriate and proportionate adjustment shall be made in the
number of Shares to be issued hereunder. Such adjustments shall be made by the
Committee in good faith.
X
WITHHOLDING OF APPLICABLE TAXES
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The Company shall have the right to withhold from any transfer or
payment made to the Participating Grantee under this Award Agreement, in cash or
in stock, all federal, state, city or other taxes as may be required pursuant to
any statute or governmental regulation or ruling. In connection with such
withholding, the Company may make any arrangement consistent with this Award
Agreement as it may deem appropriate.
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XI
NO AGREEMENT OF EMPLOYMENT OR SERVICE
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Nothing in this Award Agreement shall be construed as giving the
Participating Grantee an agreement or understanding, express or implied, that
the Company shall continue the employment or service of such individual.
XII
AMENDMENT OF THE AWARD AGREEMENT
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The Award Agreement may be amended in whole or in part by the
Committee in its sole discretion, provided that no such action shall adversely
affect or alter any right or obligation existing prior to such amendment.
XIII
BENEFIT OF AWARD AGREEMENT
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The terms and provisions of this Award Agreement shall be binding
upon, and shall inure to the benefit of, the Participating Grantee and his
executors or administrators, heirs, and personal and legal representatives.
XIV
GOVERNING LAW
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THE LAW OF THE STATE OF TEXAS SHALL BE CONTROLLING IN ALL MATTERS
RELATING TO THIS AWARD AGREEMENT, AND THIS AWARD AGREEMENT AND ALL MATTERS
PERTAINING HERETO SHALL BE DEEMED TO BE PERFORMABLE IN DALLAS COUNTY, TEXAS.
XV
SEVERABILITY
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If all or any part of the Award Agreement is declared by any court or
governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not serve to invalidate any portion of the Award Agreement not
declared to be unlawful or invalid. Any article or part of an article so
declared to be unlawful or invalid shall, if possible, be construed in a manner
which will give effect to the terms of such article or part of an article to the
full extent possible while remaining lawful and valid.
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DATED: November 15, 1996
COLUMBUS REALTY TRUST
By:
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Name:
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Title:
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PARTICIPATING GRANTEE:
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NAME
Address:
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